Kumar (Migration)

Kumar (Migration) [2020] AATA 5770 (11 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rakesh Kumar
CASE NUMBER:  1828508
HOME AFFAIRS REFERENCE(S):          BCC2018/1611888 BCC2018/5016975
MEMBER:Wan Shum
DATE:11 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:
·cl.190.214 of Schedule 2 to the Regulations.

Statement made on 11 December 2020 at 9:37am
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) visa – Subclass 190 Skilled - Nominated – points test criteria – skilled occupation of Chef – Australian and overseas employment experience – bank statements reflecting salary deposits – employment in closely related skilled occupation – bachelor level qualification from a recognised institution – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 93,94, 96, 350
Migration Regulations 1994, Schedule 2, cl 485.231; rr 1.03, 1.15
CASES
Talha v Minister for Immigration and Border Protection [2015] FCAFC 1151
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 2018 to refuse to grant the applicant a Subclass 190 - Skilled - Nominated visa under s.65 of the Migration Act 1958 (the Act). This is a points-based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The applicant was invited to apply for the visa on 4 April 2018 and lodged an application on 10 April 2018. The criteria for the grant of a Subclass 190 - Skilled - Nominated visa are set out in Part 190 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.190.214 as the assessed score was less than the invitation score of 60.
The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.
The applicant appeared before the Tribunal on 9 October 2020 by video through Microsoft Teams meeting to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:
·is not less than the score stated in the invitation to apply for the visa and
·is not less than the ‘qualifying score’.
Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (r.2.26AC of the Regulations). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2) of the Act. The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).
As part of the application, it is necessary for a visa applicant to nominate a skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (r.1.15I of the Regulations). The relevant instrument for this purpose is Legislative Instrument IMMI 18/051. In this case, the applicant nominated the occupation of Chef. Trades Recognition Australia is the relevant assessing authority for the nominated occupation of Chef. The applicant submitted with the application a skills assessment from VETASSESS (on behalf of TRA) dated 22 September 2017 which stipulates that his skills were suitable in his nominated occupation of ‘Chef’. The assessment outcome does not set out details of employment or qualifications considered to reach this conclusion.
Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?
Part 6D.1 – Age qualifications
Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.
At the time of invitation, the applicant was aged 37. Therefore, the applicant is entitled to 25 points under this part.
Part 6D.2 – English language qualifications
Points are available under this Part if the applicant’s level of English language proficiency at the time of invitation to apply for the visa meets the definitions of ‘proficient English’ or ‘superior English’. The applicant has provided evidence of a PTE Academic test score taken on 26 June 2017 in which he achieved 53 in listening, 58 in reading and 56 in speaking and writing. This meets the definition of ‘competent English’ but not ‘proficient English’ or ‘superior English’.
Therefore, the applicant is not entitled to points under this part.
Part 6D.3 – Overseas employment experience qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.
The applicant was invited to apply for the visa on 4 April 2018, and the Tribunal considers that the relevant period within which employment may be considered is 3 April 2008 to 3 April 2018.
On the visa application form, the applicant was claiming overseas employment experience of five years and Australian employment experience of one year in the relevant period. The applicant’s overseas employment claims are that he has worked in various hotel kitchens in different locations in India. In the relevant section of the application form the following details were provided:
Position: Kitchen Executive
Employer: ITC Gardenia
Country: India
Dates: 03/10/2009 – 06/06/2012
Position: Junior Sous Chef
Employer: The LaLIT Grand Palace
Country: India
Dates: 09/08/2012 – 23/10/2013
Position: Sous Chef
Employer: Fortune Inn Grazia, Ghaziabad Country: India
Dates: 04/11/2013 – 05/02/2014
Position: Chef De Cuisine
Employer: Hyatt Hyderabad
Country: India
Dates: 11/12/2014 – 12/01/2016
The delegate did not accept the claimed periods of employment, stating amongst other things, that the employment reference letters from each employer did not refer to the applicant’s duties. It was submitted by the representative that in most kitchens around the world, the duties for the positions of ‘commis chef’ and ‘chef de partie’ would be consistent. It was submitted that the duties of ‘commis chef’ would broadly include: Assist other chefs in the kitchen; Measure ingredients; Prepare vegetables and meats; Assisting with stock rotation; and Cleaning stations, while a ‘chef de partie’ would include: Preparing, cooking and presenting dishes within a speciality; Managing and training any demi-chef de parties or commis; Assist the sous chef and head chef to develop new dishes and menus; Ensuring high standards of food hygiene and follow the rules of health and safety; Monitoring portion and waste control to maintain profit margins.
According to the JobOutlook website, a person usually needs a certificate IV in commercial cookery to work as a Chef and is a course that is often completed as part of an apprenticeship. Executive Chefs, Head Chefs and Sous Chefs are identified as those who may complete additional study, such as a diploma of hospitality management. The Tribunal notes that under the ANZSCO description of ‘Chef’, the following are listed below the heading ‘specialisations’ for the occupation: Chef de Partie, Commis Chef, Demi Chef, Second Chef and Sous Chef. The Tribunal accepts that titles such as ‘commis chef’, ‘chef de partie’ and also ‘sous chef’ are commonly used in the hospitality industry around the world, and while not necessarily the case with other occupations, the duties for these positions in hotel kitchens would generally involve similar duties.
On review, the Tribunal was provided with additional information including letters of engagement, payslips, and also photographs taken during his employment at the various hotels and even some articles published in local newspapers which clearly depict the applicant in his chef’s whites. During the hearing, the applicant confirmed his employment history consistently with the information set out in the application form. He gave evidence about his duties and responsibilities, and the differences, if any, between the positions. The applicant was also able to answer the Tribunal’s questions as to why he left each employer without hesitation.
In support of his claim to have been employed as a Chef at ITC Gardenia, the applicant provided a copy of his contract of employment, which states that he is to be engaged as a Commis I on a Fixed Term Contract from 3 October 2009 to 2 October 2010. It was submitted, that generally speaking, it is well recognised that a commis chef is a junior member of staff that works under a chef de partie, to assist in the preparation of ingredients and perform tasks as directed by the chef de partie. The Tribunal accepts on the evidence presented that the applicant was then promoted to the position of Chef de Partie on 1 January 2010. It was submitted that in most kitchens throughout the world, the duties and responsibilities of a commis chef and chef de partie are consistent. The applicant has presented evidence that he was then promoted to the position of Kitchen Executive in February 2011. In terms of the type of employment, the Tribunal was referred to the statements in the employment contract and letter of ‘confirmation in service’ that: “… Company personnel are whole time employees and will not undertake any other business, work or public office, honorary or remunerative, expect with the written permission of the management in each case…”. The applicant gave evidence that his employment was full-time during this period.
It was submitted that the applicant had not been able to obtain letters from the employer setting out his duties. However, two letters of support were provided from Mr Vohra and Mr Jodha, both parties claiming to have worked with the applicant. The Tribunal has taken these letters into account.
The Tribunal was also provided with the bank statements of the AXIS Bank which correspond to the account number stated on his payslips (AXIS Bank) for the period from 2 December 2009 to 8 October 2012 showing his salary deposits and a bank statement from Standard Chartered which reflects his first salary deposit from ITC Gardenia for October 2009.
The amount of salary deposited into the applicant’s AXIS Bank reflects the figures on his payslips.
The Tribunal further notes that the Form No.16 income tax documents for the assessment year 2011-2012 and Form No. 12BA salary certificate for the financial years 2010-2011 were provided, confirm the employer and his position of ‘Kitchen Executive’.
Having regard to the evidence presented and the ANZSCO description of Chef and the specialisations listed in the description, which include Chef de Partie and Commis Chef, the Tribunal accepts that the applicant was employed full-time from 3 October 2009 to 2 October 2010 as a Chef at ITC Gardenia. The period of employment in his nominated occupation with this employer was therefore 2 years 8 months (or 32 months), 4 days.
The applicant then claims to have been employed at LaLIT Grand Palace as a Junior Sous Chef from 9 August 2012 to 23 October 2013. The employment letter states that the appointment is for Bharat Hotels which trades as LaLIT Grand Palace.
The applicant provided additional information to the Tribunal of this employment, and declared in a statutory declaration that throughout his employment at The LaLIT Grand Palace he occupied the position of Junior Sous Chef in accordance with the job description which he attached, and that he worked full-time. He declares that he is unable to obtain a reference letter setting out his duties and was only given a document setting out his dates of employment.
The document setting out the job description, which was referred to in the appointment letter dated 9 August 2012 but had not been given to the Department, sets out duties that the Tribunal considers are consistent with the ANZSCO description of Chef.
In terms of the nature of the employment, the Tribunal accepts that the appointment letter dated 9 August 2012 states the normal working hours per week will be 48 hours over 6 days, and accepts this evidence.
The salary amounts in the payslips June 2013 for $29,532, July 2013 for $28,855.00, August 2013 for $29,532 and September 2013 for $29,529 are reflected in a printout of the transactions for a bank account held in the applicant’s name at Jammu and Kashmir Bank for the period of 21 August 2012 to 30 November 2013. The Tribunal notes that the statements reflect regular salary payments for the period of claimed employment.
The Form No.16 income tax documents for the assessment year 2014-2015 confirm the employer is Bharat Hotels.
The applicant also provided a reference letter from Mr Sudarshan Kumar Sharma (head chef of The LaLIT Laxmi Vilas Palace) which states that he visited the hotel at which the applicant was working. The applicant provided a copy of his business card confirming his designation as a Junior Sous Chef. While these pieces of evidence have been taken into account and generally support the applicant’s claims, the weight that can be given is limited as it is unclear for how long Mr Sharma visited and the applicant’s business card does not provide any indication of when he was employed there.
Notwithstanding this, having regard to all the evidence presented on review, the Tribunal accepts that the applicant was employed on a full-time basis as a Chef at The LaLIT Grand Palace from 9 August 2012 to 23 October 2013 which is a period of 1 year, 2 months (or 14 months) and 15 days.
The applicant claimed to have then been employed at the Fortune Inn Grazia, Ghaziabad from 4 November 2013 to 5 February 2014. The applicant provided an appointment of employment letter dated 12 December 2013 for the position of Sous Chef, an employment reference letter dated 27 May 2014 confirming his dates of employment and payslips for December 2013, January 2014 and February 2014.
On review, the Tribunal was provided with a reference letter from Mr R K Reddy, Head F&B Production and Operations Support at Fortune Park Hotels Ltd. Mr Reddy states that the applicant was a member of the pre-opening team at Fortune Inn Grazia, Ghaziabad between the period 4 November 2013 to 5 February 2014. The applicant also submitted a copy of a detailed job description which it was claimed had been provided to him when he commenced his employment on 4 November 2013. In his statutory declaration dated 27 February 2019, the applicant declared that he worked full time, being 48 hours per week during his employment at Fortune Inn Grazia, Ghaziabad and his duties and tasks remained the same throughout his period of employment. The Tribunal was also provided with a number of photographs of the applicant at this workplace. During the hearing, the applicant explained when asked why his period of employment at the Fortune Inn was only for a short time, that he could not handle the pressure and was not given enough support from management. He said that he was the only person preparing menus, ordering and being given responsibility for banquets and functions as well. The Tribunal considers this to be a reasonable explanation and notes Mr Reddy’s letter refers to the applicant being part of a pre-opening team and having responsibilities consistent with the applicant’s oral evidence.
It was submitted that the pay slips previously provided to the Department, for the three months (December 2013, January 2014 and February 2014), reflect that the applicant was employed by Fortune Inn Grazia, Ghaziabad, in the position of Sous Chef. The representative explained that there is no corresponding bank account statement as the applicant’s salary was paid in “cash” as reflected in the payslip.
Having regard to all the evidence provided, the Tribunal accepts that the applicant was employed on a full-time basis in the position of Sous Chef at the Fortune Inn Grazia, Ghaziabad for a period of three months.
The applicant claims to have then been employed as a Chef De Cuisine at the Hyatt Hyderabad from 11 December 2014 to 12 January 2016. The applicant provided an employment appointment letter dated 11 December 2014, an employment reference letter dated 13 January 2016, payslips for October 2015, November 2015, December 2015 and January 2016 and Form No.16 income tax documents for the assessment year 2016-2017.
On review, the Tribunal was provided with further information including a letter dated 20 April 2015 issued by Hyatt Hyderabad confirming that the applicant had successfully completed the probationary period in the designation of Chef De Cuisine (Level 6) on 11 March 2015, and a further letter advising the applicant of his revised benefits and entitlements on 3 March 2015 which confirms his designation as Chef De Cuisine.
The applicant also provided a reference letter from Ms Kanika Mehra, Human Resources Manager of Hyatt Hyderabad dated 28 February 2019 which verifies his employment and states that his job duties at Hyatt Hyderabad were as set out in the job description. A copy of his business card gives his position as Chef De Cuisine.
The Tribunal accepts that the appointment letter dated 11 December 2014 issued by Hyatt Hyderabad reflects that the applicant was employed as a Chef De Cuisine on a full-time basis, with his normal working hours described as 48 hours over six days.
The Tribunal also has before it a copy of the detailed job description for the role of Chef de Cuisine.
The applicant made a statutory declaration regarding his employment with Hyatt Hyderabad dated 15 April 2019, declaring that he worked full time and his duties and tasks remained constant throughout his employment.
The Tribunal was also provided with copies of all payslips received from Hyatt Hyderabad and a copy of the corresponding bank statements of the AXIS Bank account. The amounts in the bank account statement matches the figures on his payslips for the period from 31 December 2014 to 30 January 2016 showing his regular salary deposits.
The Tribunal accepts that the salary recorded on the pay slips provided and the monies paid to the applicant’s bank account are consistent with the salary break up as detailed at clause 2 – Compensation of the appointment letter dated 11 December 2014.
The tax documents for the corresponding assessment year also support his claims, with Hyatt Hyderabad details as his employer and his designation of Chef de Cuisine. The Tribunal accepts on the evidence presented that the applicant was employed for the period 11 December 2014 until 12 January 2016 at the Hyatt Hyderabad as a Chef de Cuisine. This is a total of 1 year, 1 month and 2 days. The Tribunal thus accepts that he was employed as a Chef for a total of 5 years, 2 months and 23 days.

The applicant claimed to have more than 60 months and less than 96 months in the relevant period which the Tribunal accepts. It thus finds that, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.
Part 6D.4 – Australian employment qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
The Tribunal considers that 10 years immediately before the invitation to apply for the visa is the day before the invitation is dated. In this case, that means that the period ends 3 April 2018. The applicant claims to have been employed as a cook in Australia for 12 months in the relevant period for two different employers, Randhawa’s Indian Cuisine and Mumbai Blues Restaurant.
The applicant claimed to have begun employment as a Cook with Randhawa’s from 13 June 2016 to 21 March 2017 for a total period of 9 months, 9 days. This is the employer who sponsored him for the Subclass 457 visa which was granted on 10 May 2016, and on which he later entered Australia.
He claimed to have then worked as a Cook for Mumbai Blues Restaurant from 14 October 2017 and remained there until he was invited to apply for the visa, which is a period 5 months, 20 days. The applicant confirmed during the hearing that his Subclass 457 visa had been transferred to that employer as his employment with Randhawa’s ceased in March 2017.
The Tribunal asked the applicant about the short periods of employment with the Australian employers, both being less than the period of sponsorship. The applicant explained that his employment involved long hours, 6 days per week, and being underpaid. This is consistent with information he gave to the Department a few weeks prior to his employment ceasing with Randhawa’s, which includes reference to being forced to resign or have his visa cancelled, not being given public holidays or superannuation fund payments. He added that he was ultimately paid superannuation by the Randhawa’s after ceasing employment there but not Tushaan Enterprises. The applicant said that it was his belief that the latter had closed all the restaurants it operated. The Tribunal’s own searches reveal that Tushaan Enterprises Pty Ltd was appointed a liquidator by an order of the Court on 12 April 2019[1] and that the approval of the business as a sponsor was cancelled and barred by the Department on or around 6 September 2019 following monitoring.
[1] >
The Tribunal referred to an allegation regarding payment for visas in connection with one of the applicant’s previous employers dated March to June 2018. Based on this timeframe, the allegations are connected with Tushaan Enterprises Pty Ltd, who had sponsored the applicant in October 2017. The applicant confirmed that his Subclass 457 visa had been transferred to that employer as his employment with Randhawa’s ceased in March 2017. He denied that he had paid for the visas.
As to whether he was employed in the skilled occupation or a closely related occupation for at least 12 months, the applicant provided three forms of evidence in support of his employment at Randhawa’s Indian Cuisine as part of his visa application, including a certificate of service dated 6 April 2017. The letter is brief and does not include any details of his job or duties. The applicant claimed that he was unable to obtain a detailed work reference following the cessation of his employment with Randhawa’s Indian Cuisine, but was instead advised that only a Certificate of Service would be provided. He claims that he worked full time, being at least 38 hours per week during his employment at Randhawa’s Indian Cuisine and his job duties remained in accordance with the Employment Agreement throughout his employment, a copy of which was provided with a detailed list of the job duties at Schedule 1. Having regard to the payslips provided to the Department, the Tribunal accepts that the amount of salary deposited into the applicant’s bank account, is consistent with the figures detailed on his payslips during his period of employment with Randhawa’s Indian Cuisine.
The applicant also has a copy of his superannuation statement for the financial year from 1 July 2016 to 30 June 2017 showing contributions made by Randhawa’s Indian Cuisine for the period. The PAYG payment summary reflects that employment commenced from 13 June 2016 and ceased on 1 June 2017.
The applicant claims that he then commenced working for Tushaan Enterprises in October 2017. He provided an employment letter of engagement dated 1 May 2017 which included the duties and responsibilities which he claims remained constant throughout his employment. He also provided payslips for the month of October 2017. The Tribunal has also had regard to an experience letter dated 26 May 2018 from Tushaan Enterprises Pty Ltd confirming his employment with the company in the position of Cook between the period 14 October 2017 to 22 May 2018.
The Tribunal notes that the bank statements from Commonwealth Bank of Australia for the period from 1 July 2017 to 30 June 2018 reflect that his salary deposits from Mumbai Blues (Tushaan Enterprises Pty Ltd) are consistent with the figures detailed on his payslips during his period of employment.
The Tribunal has also been provided with the PAYG payment summary corresponding with his period of employment, which indicates that the start date was 14 October 2017 and last day was 21 May 2018. The payment summary details the name of the employer and employee, the gross payment received for the financial year ending 30 June 2018 and total tax amounts withheld during the period.
The Tribunal has taken into account the superannuation statement for the financial year 1 July 2017 to 30 June 2018. The applicant’s evidence is that his employer failed to pay him superannuation for the period of his employment, so he lodged a complaint against his employer with the Australian Taxation Office (ATO). The Tribunal was provided with evidence that an employer debt was established in the applicant’s favour following an investigation by the ATO.
Having regard to all the evidence presented, including the evidence at hearing, the Tribunal accepts that the applicant was employed as a cook with Randhawa’s Indian Cuisine for a period of 9 month and 9 days. The Tribunal accepts that the applicant was employed for a period of 5 month and 20 days at Mumbai Blues Restaurant in the relevant period. It thus finds that the applicant was employed for at least 12 months as a Cook.
It will now turn to consider whether this employment in Australia was in the nominated occupation or a closely related skilled occupation.
The applicant’s employment in Australia has been as a ‘cook’ (ANZSCO 351411) while his nominated occupation is chef (ANZSCO 351311). There is no dispute that they are different occupations. It was submitted however that the applicant’s employment as a cook is closely related to the occupation of a chef and should count towards the total work experience being claimed. This was said to be because the first 3 digits of the ANZSCO code for both occupations are the same, such that the occupations belong to the same Minor Group. The Tribunal was referred to the decision of the Full Federal Court in the case of Talha v Minister for Immigration and Border Protection [2015] FCAFC 1151.
Having regard to the tasks and the descriptor of Cook and Chef in ANZSCO, the Tribunal accepts that the occupation of Cook is closely related to that of a Chef. The evidence before the Tribunal is that the applicant was engaged on a full-time basis and that he held a Subclass 457 visa throughout the periods of employment. It therefore finds that the applicant was employed in a closely related occupation for a period totalling at least 12 months and less than 36 months in the relevant period.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.
Part 6D.5 - Aggregating points for employment experience qualifications
Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 15. As this is not more than 20 points, the points for employment experience will not be aggregated under this part.
Part 6D.6 – Australian professional year qualifications
Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months. The applicant is not claiming, and has not provided evidence, that he had completed a professional year in Australia in the nominated skilled occupation or a closely related occupation.
Therefore, the applicant is entitled to no points under this part.
Part 6D.7 – Educational qualifications
An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in r.2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.
The applicant has provided evidence of having been awarded a Bachelor of Arts from University of Delhi, Delhi, India undertaken from April 2004 to July 2008. It is not clear to the Tribunal whether this was full-time study. According to the Country Education Profiles maintained by the Australian Government Department of Education, the University of Delhi is a Section 1 institution which means that an Indian Bachelor degree in any division/class, which was awarded after 3 years or more full-time study is comparable to an AQF bachelor degree.
Following the hearing, the applicant provided an assessment from VETASSESS, advising that on 3 December 2020, that Bachelor of Arts completed in 2008 is recognised by VETASSESS for the purpose of awarding points for qualifications under the General Skilled Migration points test as comparable to the educational level of an AQF Bachelor degree. The other qualifications of Certificate in Food and Nutrition and the Gardenia Executive Training Programme were not recognised by VETASSES.
Based on this assessment, the Tribunal finds that the applicant meets the requirements of having the award of at least a bachelor level qualification, by another institution, that is of a recognised standard and he is entitled to 15 points under this part.
Part 6D.8 – Australian study qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study and completed them in a total of at least 16 calendar months as a result of a total of at least two academic years of study.
The applicant did not claim, and did not provide evidence, that he had undertaken any relevant study in Australia and he is therefore not entitled to points under this part.
Part 6D.9 – Credentialled community language qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language. The applicant is not claiming points under this part.
Therefore, the applicant is not entitled to points under this part.
Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in r.1.15F of the Regulations), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes. The applicant did not undertake any relevant Australian study. Therefore, he does not meet the requirements under paragraph (a) of this part and is not entitled to points under this part.
Part 6D.11 – Partner Skill Qualifications
Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident. At the time the applicant was invited to apply for the visa, the spouse/partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.
The applicant did not make claims under this part and is not entitled to points under this part.
Part 6D.12 – State or Territory nomination qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant was invited to apply for a Subclass 190 visa by the NSW Department of Industry. The Tribunal contacted the department who confirmed that the nomination had not been withdrawn. The applicant is entitled to 5 points under this part.
Part 6D.13 – Designated regional area nomination or sponsorship qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.
Conclusion on points
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:
6D.1 - Age  25 points
6D.2 - English language  0 points
6D.3 - Overseas employment experience  10 points
6D.4 - Australian employment experience  5 points
6D.5 - Aggregated employment  NA
6D.6 - Australian professional year  0 points
6D.7 - Educational  15 points
6D.7A – Specialist educational  0 points
6D.8 - Australian study  0 points
6D.9 - Credentialled community language  0 points
6D.10 - Study in regional / low-population area  0 points
6D.11 - Partner skill  0 points
6D.12 - State or Territory nomination  5 points
6D.13 - Designated area sponsorship  0 points
Total points  60 points
The applicant’s assessed score under the points system is therefore 60 points.
It was submitted that the relevant instrument for the pass mark was IMMI 12/017. However, at the time of the delegate’s assessment the applicable instrument was Legislative Instrument IMMI 18/067. In any case, the pass mark for a pre-1 July 2018 invitation to apply remained at 60 points. The applicant has therefore achieved the qualifying score to pass the points test.
Has the applicant achieved the score stated in the invitation to apply for the visa?
It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 60 points. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.
For the above reasons, the applicant is entitled to a maximum of 60 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl.190.214, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.
DECISION
The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:
·cl.190.214 of Schedule 2 to the Regulations.
Wan Shum
Member

[2020] AATA 5770

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Remedies